The case of former Pace University student Stanislav Shmulevich, who was arrested for twice shoving a copy of the Koran down a campus toilet last year, has garnered considerable media coverage. David French, member of FIRE’s Legal Network and senior counsel for the Alliance Defense Fund, has an excellent discussion on Phi Beta Cons of the legal issues involved, including the idea of “hate crimes.” French writes,
There is no question that the Koran does not receive any special protection under the law that the Bible, the Torah, or (from a secular perspective) the American flag doesn’t receive. A person can take a jug of toilet water and pour it over the Koran at a public demonstration. A person could do all the obscene things to the Koran that radical secular leftists have done to the Christian religious images. A person does not, however, have the right to stop up a university toilet. Whether you’re drop a bowling ball, a copy of Moby Dick, or a holy book into a toilet, you don’t have a right block someone else’s bowl.
But how is that a “hate crime?” A hate crime is generally only constitutional if it is an aggravating circumstance to another, underlying crime. For example, if someone angrily called me a “cracker” (I’m a rural white southerner who follows NASCAR), that’s not a hate crime. It may be rude and annoying, but it is not a hate crime. But if someone starts physically beating me and shouting, “I hate crackers,” then I may be the victim of a hate crime. The beating (an act of assault) is the underlying crime.
Michelle Malkin covers the incident and provides excerpts of commentary by a number of journalists and intellectuals on the subject. The indispensable Eugene Volokh has an excellent post parsing relevant New York state laws and another post on hate crimes generally and the danger they pose to freedom of thought. On “hate crimes,” Volokh opines,
It seems to me that this sort of use of the hate crime statutes is at least very dangerous to free speech, and may well be unconstitutional. Unfortunately, people sometimes act in illegal — often mildly illegal — ways when engaged in protest. It’s right to punish them for such actions. But it seems to me that they shouldn’t be punished more (potentially much more, as when a misdemeanor is turned into a felony) because they were motivated by disapproval of a religion, a religious practice, a sexual orientation, and the like, or were motivated by a desire to offend people based on these criteria.
Such additional punishment is not, it seems to me, primarily punishment for the crime (since that would have been covered by the unenhanced punishment), or even for the discriminatory selection of a crime’s target. Rather, it is punishment for the ideology that motivated the crime. And it will deter even speakers who have that ideology but have no plans to commit any crimes…
Please, read them both in their entirety.
Finally, an editorial in the New York Post makes the point that the principle of the rule of law precludes capricious efforts to punish the thoughts of criminals in addition to their actions. Writes the Post:
Without [the rule of law], the level of protection speech receives depends on the arbitrary whims of the powerful—which is something about which people on the receiving end of the kind of harassment in question should be especially concerned.
Stanislav Shmulevich should be punished for crimes he has committed. But the thoughts in his head are his own.